Kale v. Social Security Administration

Filing
16

ORDER AFFIRMING THE COMMISSIONER. The ALJ made no legal error. For these reasons, the Court denies Kale's request for relief, 2 , and affirms the Commissioner's decision. Signed by Magistrate Judge Jerome T. Kearney on 1/23/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Leganzie S. Kale
Plaintiff
v.
CASE NO. 3:14CV00067 JTK
Carolyn W. Colvin, Acting Commissioner,
Social Security Administration
Defendant
ORDER AFFIRMING THE COMMISSIONER
Leganzie S. Kale seeks judicial review of the denial of his application for disability
insurance benefits (DIB). Kale applied for DIB in June 2011, with an alleged onset date of
December 17, 2010.1 This is Kale’s second application for DIB. His previous application was
denied on July 13, 2004.2 Kale last worked in December 2010 as an assistant program director at
a radio station.3 Kale’s date last insured is December 31, 2015.4 Kale bases disability on bi-polar
disorder, attention deficit hyperactivity disorder (ADHD), anxiety, panic attacks, depression,
cardiac dysrhythmia and hypothyroidism.5
The Commissioner’s decision. The Commissioner’s ALJ determined that Kale has not
engage in substantial gainful activity since the alleged onset date.6 Kale has severe impairments bipolar disorder with depression, ADHD, generalized anxiety disorder with panic attacks and
1
SSA record at p. 106.
2
Id. at pp. 125-126.
3
Id. at p. 131.
4
Id. at p. 125.
5
Id. at pp. 130 & 206.
6
Id. at p. 12.
cardiac dysrhythmia.7 None of Kale’s severe impairments meet the Listings, and Kale can
perform a full range of work at all exertional levels, but he is restricted to simple, unskilled and
semiskilled work activities, jobs that a high school graduate can perform; he can understand,
follow and remember concrete instructions; contact with supervisors, coworkers and the public is
superficial; and he can meet, greet, make change and follow simple instructions and directions.8
The ALJ held that Kale cannot perform any past relevant work,9 but can perform the positions of
document preparer and jewelry preparer, positions identified by the vocational expert (VE) as
available in the state and national economies.10 Kale’s application was denied.11
After the Commissioner’s Appeals Council denied a request for review, the ALJ’s
decision became a final decision for judicial review.12 Kale filed this case to challenge the
decision. In reviewing the decision, the Court must determine whether substantial evidence
supports the decision and whether the ALJ made a legal error.13
7
Id.
8
Id. at pp. 13 & 15.
9
Id. at p. 23.
10
Id. at pp. 24-25.
11
Id. at p. 25.
12
See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating, “the Social
Security Act precludes general federal subject matter jurisdiction until administrative remedies
have been exhausted” and explaining that the appeal procedure permits claimants to appeal only
final decisions).
13
See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the Commissioner
conformed with applicable regulations); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We
will uphold the Commissioner’s decision to deny any applicant disability benefits if the decision
is not based on legal error and if there is substantial evidence in the record as a whole to support
2
Kale’s allegations. Kale maintains that the ALJ’s denial of disability benefits should be
reversed because the ALJ erred in the RFC determination. The ALJ’s decision is supported by
substantial evidence and no legal error occurred.
Substantial evidence is “less than a preponderance but . . . enough that a reasonable mind
would find it adequate to support the conclusion.”14 For substantial evidence to exist in this case,
a reasonable mind must accept the evidence as adequate to support the determination that Kale is
not disabled.15
RFC. Kale argues that an error occurred in the RFC determination because the opinion of
the treating psychologist was not given controlling weight. Although the opinion of a treating
physician is usually granted controlling weight, “an ALJ may grant less weight . . . when that
opinion conflicts with other substantial medical evidence contained within the record.”16 In the
instant case, the ALJ determined that the opinion of Kale’s treating psychologist was not
conclusive as to the issue of disability because it was highly inconsistent with the medical
evidence and other evidence of record. This determination is supported by substantial evidence.
Kale’s treating psychologist completed a Medical Source Statement in February 2013.17
She opined that Kale is markedly limited in his abilities to sustain an ordinary routine without
the conclusion that the claimant was not disabled.”).
14
Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010) (internal quotations and citations
omitted).
15
See Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990).
16
Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th Cir. 2000).
17
SSA record at p. 296.
3
special supervision and respond appropriately to changes in the work setting.18 She further
determined that he is extremely limited in the:
ability to carry out detailed instructions;
ability to maintain attention and concentration for extended periods;
ability to perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances;
ability to work in coordination with or proximity to others without being distracted by
them;
ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods;
ability to interact appropriately with the general public;
ability to accept instructions and respond appropriately to criticism from supervisors; and
ability to get along with co-workers or peers without distracting them or exhibiting
behavioral extremes.19
As the ALJ determined, this opinion is inconsistent with substantial records presented in this
case.
While the record reflects that Kale has sought mental health treatment for bipolar
disorder, anxiety and ADHD in the past, the record establishes that with treatment, Kale’s mental
impairments improved. In late 2008 through 2009, Kale sought treatment with his current
treating psychologist. Through multiple counseling sessions, Kale was taught coping
mechanisms, how to challenge negative self thoughts, and how to identify anger triggers, among
18
Id. at pp. 296-297.
19
Id.
4
other things.20 Kale’s treating psychologist referred Kale to a psychiatrist for prescription
medications.21 Kale was subsequently prescribed medications for ADHD, bipolar and anxiety.22
These medications remain relatively consistent throughout the medical records. Although one
progress note during this time period indicates that Kale’s mental progress deteriorated,23 the
remainder of the notes observe improvement or no change.24 Indeed, in letters to Arkansas State
University - where Kale was previously enrolled - and to the principal of Coahoma County High
School - where Kale was employed - the treating psychologist noted significant improvement in
Kale.25 Kale does not seek additional treatment or counseling for approximately sixteen months
following these sessions.
In January 2011, subsequent to the alleged onset date, Kale returned to his treating
psychologist.26 The note indicates that Kale’s progress had deteriorated.27 The treating
psychologist refers Kale to his primary care physician for prescription of a mood stabilizer.28
20
Id. at pp. 322-323, 326-329, 333, 335, 342, 344-345, 348, 354-355, 361, 371, 393 &
395-397.
21
Id. at p. 360.
22
Id. at pp. 335, 345 & 355.
23
Id. at p. 342.
24
Id. at pp. 322-323, 326-329, 333, 335, 344-345, 348, 354-355, 361, 371, 393 & 395-
25
Id. at pp. 346-347.
26
Id. at p. 312.
27
Id.
28
Id. at p. 214.
396.
5
Kale is prescribed Pristiq.29 After experiencing side effects, however, he is prescribed a different
anti-depressant - Lexapro.30 In a February 2011 progress note, Kale’s treating psychologist
observed that Kale had improved.31 This observation is echoed in progress notes from cardiology
and endocrinology appointments in which the physicians observed no depression, no anxiety, no
apparent distress, and no suicidal ideation.32 Kale was awake, alert and oriented in all three
spheres.33 His judgment, mood and affect were appropriate.34
Although Kale alleges disabling mental symptamology in 2011 and 2012, following the
February 2011 appointment with his treating psychologist, Kale does not seek additional
treatment with a mental health professional until February 2013.35 In February 2013, on the same
day the Medical Source Statement was completed, Kale’s treating psychologist noted that Kale
had shown some slight improvement.36 He was neither suicidal nor homicidal.37 Further, no
medication changes - aside from additional medications for physical impairments - were noted.38
Kale was continued on basically the same medications he was prescribed from 2009-2011.
29
Id.
30
Id. at p. 213.
31
Id. at p. 299.
32
Id. at pp. 232 & 263.
33
Id. at p. 232.
34
Id. at pp. 232 & 263.
35
Id. at p. 298.
36
Id.
37
Id.
38
Id.
6
The records establish that Kale’s mental impairments can be controlled with treatment.
This weighs in favor of the ALJ’s evaluation of Kale’s treating psychologist’s opinion.39 What
provides even further support is the fact that Kale sought only episodic treatment.40 There are
long stretches in the medical record during which Kale sought no mental health treatment.41
The state physician assessments also conflict with the conclusions of Kale’s treating
psychologist and therefore provide greater support for the ALJ’s determination. In September
2011, a state physician examined Kale and completed a consultative report.42 During the exam,
Kale communicated to the physician that he suffers from depression, bipolar disorder,
hyperthyroid disorder, panic attacks and increased heart rate.43 He denied, however, that he was
significantly depressed or experiencing any suicidal ideation at that time.44 The physician noted
39
See Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (holding depression was not
severe when it improved with medication); Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002)
(“An impairment which can be controlled by treatment or medication is not considered
disabling.”).
40
See Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997) (failing to seek medical
assistance for alleged physical and mental impairments contradicted claimant’s allegations of
disabling conditions and supported unfavorable decision); Ostronski v. Chater, 94 F.3d 413, 419
(8th Cir. 1996) (complaints of disabling pain and functional limitations are inconsistent with the
failure to take prescription pain medication or to seek regular medical treatment for symptoms).
41
Kale maintains that he did not seek continuous treatment due to financial constraints.
When there is no evidence, however, that he sought to obtain low-cost medical treatment from
his treating psychologist or from area clinics or hospitals, or that he was denied medical care due
to his financial condition, an ALJ can properly find that a claimant’s financial condition was not
severe enough to justify his failure to seek treatment. See Murphy v. Sullivan, 953 F.2d 383,
386-87 (8th Cir. 1992).
42
SSA record at p. 235.
43
Id.
44
Id.
7
that:
[Kale] displayed a euthymic tone, and was polite and cooperative throughout the
interview. Affect was appropriate to content and without remarkable expansion or
constriction of expressive range. . . . Speech was generally unremarkable and without
pressure, acceleration or slowing. . . . Throughout the course of the evaluation,
speech was logical, relevant and goal directed and without remarkable
circumstantiality. . . . [Kale] did not present with any bizarre or peculiar
preoccupations and denied experiences of thought withdrawal/insertion or control.
No formal delusional material was elicited. . . . During the current evaluation there
was no avert evidence of responding to internal stimuli. Hallucinations and delusions
were denied. [Kale] presented as alert and fully oriented.45
After administering multiple diagnostic tests, the state physician determined that Kale is bipolar
and assigned a Global Assessment of Functioning (GAF) score of 65.46 The report notes that
Kale drives familiar routes, can handle personal finances, performs household chores, considers
himself typical in terms of social interaction and denies social isolation.47 The physician opined
that Kale “maintains an average level of adaptive functioning . . . appear[s] capable of adequate
and socially appropriate communication and interaction” and “appear[s] to sustain a reasonable
degree of cognitive efficiency and was able to track and respond to various kinds of questions
and tasks.”48 Further, it was noted that Kale has the capacity to perform tasks within a basically
acceptable timeframe.49
As the state physician made note of in his report, Kale is able to carry out many activities
of daily living. According to a Function Report completed by Kale, he is able to tend to his own
45
Id. at p. 236.
46
Id. at p. 237.
47
Id.
48
Id. at pp. 237-238.
49
Id. at p. 238.
8
personal care.50 He sometimes microwaves food for himself, can load and unload the dishwasher
and wash laundry.51 He is able to go out alone, drive a car and shop in stores.52 Further, he can
pay bills, count change, handle a savings account and use a checkbook/money orders.53 Kale’s
spouse reported that Kale leaves the house a couple of times a week.54 Kale would visit his
mother when she was still living and eats lunch out at local restaurants.55 Kale is able to take the
trash out.56
It is also important to note that a few months prior to Kale’s alleged onset date, he
obtained a master’s degree.57 Although this occurred prior to the alleged onset date, it is telling
about Kale’s mental state. Kale asserts that his grandmother’s death in 2008 greatly affected his
mental health.58 Indeed, many of the counseling notes indicate just that.59 Although the death of a
family member is certainly traumatic, the record demonstrates that Kale’s masters degree was
completed subsequent to his grandmother’s death. Pursuing post-graduate education requires
50
Id. at p. 169.
51
Id. at p. 170.
52
Id. at p. 171.
53
Id.
54
Id. at p. 156.
55
Id.
56
Id. at p. 154.
57
Id. at p. 37.
58
Id. at pp. 38-39 & 374.
59
Id. at pp. 322-323, 326-329, 333, 335, 342, 344-345, 348, 354-355, 361, 371, 393 &
395-397.
9
hard work, concentration and persistence. Through his grief, Kale was able to demonstrate each
of these qualities as evidenced by his advanced degree. This weighs against the opinion of Kale’s
treating psychologist.
A reasonable mind would find the above evidence adequate to support the ALJ’s decision
to decline to give controlling weight to the opinion of Kale’s treating psychologist. The treating
psychologist’s opinion conflicts with the records presented.
Conclusion. Substantial evidence supports the ALJ’s decision. The ALJ made no legal
error. For these reasons, the court DENIES Kale’s request for relief (docket entry # 2) and
AFFIRMS the Commissioner’s decision.
It is so ordered this 23rd day of January, 2015.
____________________________________
UNITED STATES MAGISTRATE JUDGE
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